Hilde v. City of Eveleth

• Decision Date: 05 February 2015
• Docket Number: No. 14–1016.,14–1016.
• Citation: 777 F.3d 998
• Parties: Lt. LeRoy HILDE, Plaintiff–Appellant v. CITY OF EVELETH, a Minnesota political sub-division, Defendant–Appellee AARP Amicus on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

777 F.3d 998

Lt. LeRoy HILDE, Plaintiff–Appellant

v. CITY OF EVELETH, a Minnesota political sub-division, Defendant–AppelleeAARP Amicus on Behalf of Appellant.

No. 14–1016.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 13, 2014.

Filed: Feb. 5, 2015.

Rehearing and Rehearing En Banc Denied March 18, 2015.

Andrew Muller, argued, Minneapolis, MN, (John A. Klassen, on the brief), for appellant.

Patricia Ytzen Beety, argued, Saint Paul, MN, for appellee.

Before MURPHY, MELLOY, and BENTON, Circuit Judges.

Opinion

BENTON, Circuit Judge.

The City of Eveleth did not promote LeRoy Arthur Hilde to Chief of Police. Hilde—age 51 and retirement-eligible—claims that the City violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 623(a)(1), 631(a), and the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363A.08, subd. 2. He appeals from summary judgment for the City. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.

I.

In January 2012, Chief of Police Brian Lillis announced his retirement. Hilde, on the force for 29 years, applied for the position. He was its only Lieutenant, the second-highest rank. A three-member commission controls hiring, promoting, discharging, and suspending the City police employees. Minn.Stat. §§ 419.02, 419.05. The commissioners in 2012 were John Richard England, Mary Debevec, and Gary Skerjance. Between 1990 and 2012, the commission promoted internally, never seeking outside applications for vacancies. When one commissioner asked Chief Lillis whether any internal candidates met the minimum qualifications for his position, Lillis said that the three internal candidates were qualified but “one is not interested,” referring to Hilde (Hilde denies telling anyone he was uninterested in the position). The commissioners, recruiting both internally and externally, selected four finalists, including Hilde and an external candidate, Detective Timothy Howard Koivunen.

Hilde had earned a high level of respect from Chief Lillis and the officers he supervised. The commissioners also agreed Hilde was an excellent Lieutenant. As Lieutenant, Hilde served as acting Police Chief when Lillis was unavailable. Hilde had an Associate's degree in law enforcement, and he had completed all continued training (though he did not enroll in leadership or management classes). Koivunen had served with the city of Virginia, Minnesota, for 18 years, reaching the rank of Detective. He had a Bachelor's degree in criminal law. Commissioner Debevec said that she personally chose Koivunen because his education included “some of the more current schools.” Lillis also noted Koivunen's more “contemporary training made him an appealing candidate to the [c]ommission.”

The commission's protocol for hiring the Chief was to score three criteria: weighted years of service, training and employment, and an interview. Usually, each commissioner independently scored each candidate. The weighted-years-of-service score counted the candidate's actual years of police service with double credit for time as Sergeant and triple for Lieutenant. The City agrees that the weighted years of service could not be much higher than 65. The training-and-employment score was subjective, with a maximum of 20 points “awarded for specialized training, education or prior employment relevant to the job of Chief of Police.” As for the interview points, the commissioners rated each candidate's appearance, greeting, presence, and closure on a scale of 1 to 5, and each candidate's answers to eight interview questions on a scale of 1 to 10. The maximum interview score was 100 points. The maximum total score for a finalist was about 185.

Before the interview, Hilde had a service score of 65—29 years of service, including 8 years as Sergeant and 14 years as Lieutenant—the highest of the finalists. He received 9 out of 20 on training-and-employment, the lowest of the finalists. Questioned about this score, neither the commissioners nor Lillis (who was involved in scoring) could explain how they arrived at it. Koivunen received a service score of 28—18 years of service, including 5 years as Detective, which the commission equated to Lieutenant. Koivunen scored 15 out of 20 for his training-and-employment, the highest of the finalists. The commissioners attributed this to his four-year degree and his participation as a Drug Abuse Resistance Education (D.A.R.E.) instructor at local schools. Before the interviews, Hilde led with a score of 74; Koivunen was second with 43 points.

After interviewing the candidates, the commissioners asked Lillis to leave the room while they deliberated (which he says was not typical). Before leaving, he told them that Hilde was the right choice for the position and that should be “accurately reflected in the scores.” Each commissioner gave Koivunen perfect 100 scores for his interview, a first according to Lillis. The commissioners claimed either to have no recollection of changing Koivunen's scores or to have independently reached these scores before deliberating. Hilde's interview sheets also reported identical scores between the commissioners for each component of his interview, totaling 69 points. Hilde and Koivunen thus each had 143 points after the interview, placing them in a tie for the position—also a first according to the commissioners and Lillis.

Two of the commissioners denied (or claimed not to remember) changing Hilde's scores, although markings on the scoring sheets were altered. Commissioner England stated in his deposition that they had “obviously” agreed on “leveling” Hilde's interview scores to reach a consensus.¹ The scores for the other two finalists varied greatly between the commissioners.

When Hilde applied, he was 51 years old. Koivunen was 43. A City officer with at least three years of service is retirement-eligible at 50. Minn.Stat. § 353.01, subd. 47(c)(1) ; § 353.651. Hilde's age made him retirement-eligible. As Commissioner England said, “[W]e were all aware that he was eligible to retire at any point in time that he chose. He was eligible right then; he could have pulled the trigger at any time.” Koivunen's age ensured he would not retire for another seven years.

Chief Lillis believed that the commissioners were looking to hire “long-term,” recalling, “Based on what I know about the whole—well, not only the process, but the things that were said after the process, I think that [Hilde's potential retirement date] probably did come into consideration.” Hilde never told the commissioners he was seeking retirement or would not be committed to the position.² In a meeting with the unsuccessful candidates, Commissioner England said that Hilde's eligibility for retirement “might have” been a factor in the commission's decision.

Hilde sued the City, alleging he was passed over for the position on account of his age in violation of the ADEA and MHRA. The district court granted summary judgment to the City, finding Hilde failed to establish a prima facie case because Koivunen was only eight years younger, which was not “substantially younger.” The court also ruled that Hilde failed to show the City's stated reasons for the decision were pretextual.

II.

A.

This court reviews de novo a grant of summary judgment, viewing the facts most favorably to the non-moving party with the benefit of all reasonable inferences. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id.

The ADEA and the MHRA prohibit age-based employment discrimination. See 29 U.S.C. § 631(a)(1) (prohibiting employer from discriminating on age if employee over 40); Minn.Stat. § 363A.08, subd. 2 (generally prohibiting age discrimination). This court analyzes the claims together under the three-step, burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Rahlf v. Mo–Tech Corp., 642 F.3d 633, 636 & n. 2 (8th Cir.2011). To establish age discrimination, a plaintiff must prove by the preponderance of the evidence that age was the but-for cause of the employment decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (“[T]he ordinary meaning of the ADEA's requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.”).

By identifying direct evidence of discriminatory motive, a plaintiff overcomes summary judgment, foregoing the McDonnell Douglas analysis. Torgerson, 643 F.3d at 1044. Direct evidence includes circumstantial evidence if the plaintiff shows “a specific link between a discriminatory bias and the adverse employment action, sufficient to support a finding by a reasonable fact-finder that the bias motivated the action.” Id. at 1046. See also EEOC v. City of Independence, 471 F.3d 891, 894 (8th Cir.2006) (“To succeed on a disparate treatment claim, the plaintiff must show the employee's age ‘actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.’ ” (alteration in original)), quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

“But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Torgerson, 643 F.3d at 1044. Under McDonnell Douglas, an employee first establishes a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the...